Solicitor for the Appellant: M.L. Chalmers (The Human Rights and Equal Opportunity Commission)

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1 HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION v. <<MOUNT ISA>> MINES LIMITED; LOU MARKS; EDWARD EMMETT; JENNIFER GEORGE AND OTHERS and NATIONAL OCCUPATIONAL HEALTH AND SAFETY COMMISSION No. NG173 of 1992 FED No. 796 Discrimination Legislation - Administrative Law (1993) 118 ALR 80 (1993) 46 FCR 301 COURT IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION BLACK CJ(1), LOCKHART(2) AND LEE(3) JJ HRNG SYDNEY, 29 September 1992 #DATE 9:11:1993 Counsel for the Appellant: D.M. Bennett QC and R.S. McColl Solicitor for the Appellant: M.L. Chalmers (The Human Rights and Equal Opportunity Commission) Counsel for the First Respondent: S.P. Charles QC and A.H. Bowne Solicitor for the First Respondent: R.P. Woods Solicitor for the Second - Twentieth Respondents: Australian Government Solicitor Counsel for Applicant on Motion: J. Basten and S. Winters Solicitor for Applicant on Motion: Public Interest Advocacy Centre ORDER The Court orders that: 1. The appeal be dismissed 2. The appellant pay two-thirds of the costs of the first respondent of the appeal. 3. The appellant pay the costs of the second to twentieth respondents of the appeal as submitting respondents. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. JUDGE1 BLACK CJ This appeal raises important questions about the impact of the Sex Discrimination Act 1984 (Cth) ("the SDA") upon the work of the National Occupational Health and Safety Commission ("the Commission") in performing the function given to it by the National Occupational Health and Safety Commission Act 1985 (Cth) ("the NOHSC Act") of declaring national standards and codes of practice relating to occupational health and safety matters. 2. The issues have arisen in the context of the Commission's preparation of a draft National Inorganic Lead Control Standard ("the proposed standard") and a draft National Code of Practice for the Control and Safe Use of Inorganic Lead at Work ("the proposed code"). 3. The way in which the issues have arisen and the course of the litigation are described in detail in the reasons for judgment prepared by Lockhart J which I have had the advantage of reading and it is sufficient if I set out the paragraphs of the proposed standard and the proposed code that lie at the centre of this case. Paragraphs 14(1) and 14(2) of the proposed standard are

2 in the following terms: "14 (1) Criteria for exclusion from working in a lead-risk job are: (a) personal medical condition; (b) pregnancy; (c) breast feeding; and (d) such other basis as may be permitted under relevant anti-discrimination legislation. (2) These exclusions do not apply to non lead- risk jobs." 4. Paragraph 12.1 of the proposed code reads: "12.1 Regarding exclusion from working in a lead-risk job: (a) Individuals with certain medical conditions (such as impaired renal function, anaemia, haemoglobinopathies, neuropathies and reproductive problems) may be more susceptible to the adverse effects of lead on health. Exclusion from working a lead-risk job on such grounds should be in accordance with section 15 of the standard, Health Surveillance. (b) Lead is a particular health risk to the fetus. A pregnant employee should keep her blood lead level below 30 g/100 ml and as low as possible. (c) Infants are more susceptible to the health effects of lead than adults. A breastfeeding employee should keep her blood lead level below 30 g/100 ml and as low as possible. (d) We are advised by HREOC that employers wishing to exclude women, other than those pregnant or breastfeeding, from lead-risk jobs will need to seek an exemption from the relevant Sex Discrimination legislation." 5. The blood level of 30 g/100ml referred to in paragraph 12.1(b) of the proposed code is lower than the blood level proposed by paragraph 15(24) of the proposed standard for the immediate removal of an employee from a lead-risk job to a job that is not a lead-risk job. The latter blood level is 60 g/100ml. 6. As Lockhart J has noted, the learned primary judge, Davies J, declared that paragraph 14(1)(d) of the proposed standard and paragraph 12.1(d) of the proposed code would be invalid if they were adopted essentially because: (a) the Commission appeared to have abrogated part of its function to the Human Rights and Equal Opportunity Commission ("HREOC") by accepting that HREOC should, through the exemption process, establish proper safety precautions for the lead industry and (b) because the Commission appeared to be overborne by the consideration of matters with which the SDA was concerned, and thereby had failed to develop a proper and adequate standard and code. Davies J also made an order that the Commission and its members, before adopting a standard and code for the lead industry, consider further whether there are any appropriate provisions which, in their opinion, should, from the point of view of occupational health and safety, be included in the standard and the code. 7. The Commission is established by s. 6 of the NOHSC Act for the objects set out in s. 7. The functions of the Commission are set out in s. 8 and the

3 functions specified in s. 8(1) include the following: "(a) To formulate policies and strategies relating to occupational health and safety matters;... (d) to review laws and awards relating to occupational health and safety matters; (e) to consider, and to make recommendations in relation to, proposals for the making of laws and awards relating to occupational health and safety matters; (f) to declare national standards and codes of practice; (g) to encourage and facilitate implementation of: (i)... (ii)... (ii) national standards and codes of practice; (h) to evaluate the effectiveness and implementation of:... (iv) national standards and codes of practice... (r) to consult and co-operate with other persons, organisations and governments on occupational health and safety matters. 8. Other functions of the Commission relate to research concerning occupational health and safety matters and s. 8(6) provides that in the performance of its function relating to research and testing the Commission shall pursue a policy directed towards the maintenance of scientific objectivity. 9. Section 38(1) of the NOHSC Act provides: "38. (1) The Commission may, by writing, declare national standards and codes of practice relating to occupational health and safety matters." 10. The primary judge rejected a submission that occupational health and safety was the sole consideration of the Commission and that the Commission ought to put concepts of sex discrimination totally from its mind. In rejecting that submission, his Honour said that the Commission could not look at matters of health and safety in the abstract and that its task was to prepare standards which would be a guide to the industry. Its task was, therefore, to prepare standards and codes which were practical and acceptable. His Honour, however, accepted the submission made on behalf of <<Mount Isa>> Mines Limited that it was not the task of the Commission to concern itself with the implementation of the SDA. 11. In his Honour's view, whilst the Commission was entitled to take account of the object which the SDA was designed to achieve and should, in any event, attempt to formulate a standard that was fair to employees whether male or female, the Commission was not limited in its consideration by the terms of the SDA. 12. On this appeal, HREOC contended that the Commission was obliged to be concerned with the SDA whereas <<Mount Isa>> Mines Limited contended that the Commission's functions were directed solely to health and safety issues and did not encompass any matters relating to equal opportunity or discrimination on the ground of sex. It was submitted that there was nothing in the NOHSC Act that suggested that the Commission, in declaring standards and codes of

4 practice, should or need take into account the SDA. 13. The NOHSC Act does not specify any matters that the Commission must or must not take into account for the purpose declaring national standards and codes of practice relating to occupational health and safety matters, but limits to the matters that may be taken into account may of course be implied from the subject-matter, scope and purpose of the legislation: see Minister for Aboriginal Affairs v. Peko-Wallsend Ltd (1986) 162 CLR 24 at When considering whether the SDA is outside the legitimate area for the Commission's consideration it is important to examine carefully the nature of the function that the Commission carries out and the power that it exercises when it declares standards and codes under s. 38 of the NOHSC. 15. As Davies J pointed out, the Commission cannot look at matters of health and safety in the abstract and its task is to prepare standards that will be a guide to the industry. Therefore, its task is to prepare standards and codes that are practical and acceptable. This follows from the nature of the national standards and codes of practice for which the NOHSC Act provides and also from the circumstance that the Commission's functions under s. 8(1) include those of encouraging and facilitating the implementation of national standards and codes and evaluating their effectiveness and implementation. 16. Since the national standards and codes of practice that the Commission may declare under s. 38 of the NOHSC Act are intended to operate as practical instruments in Australian workplaces, advisory in character but such that their implementation is to be encouraged by the Commission, the laws applying in those workplaces cannot be outside the area of relevance to the Commission's task. In fact, they may be of great importance to the Commission's function of declaring minimal standards and codes. This is particularly the case where the law in question is one that directly affects employment and is aimed at eliminating, so far as possible, discrimination on the ground of sex, marital status or pregnancy in the area of work. In my view there is no basis for any implication that the SDA is outside the scope of the Commission's consideration when preparing national standards and codes. 17. The Commission's functions in relation to such matters as testing and research and the publication of reports relating to occupational health and safety matters (as to which see ss. 8 (1)(k), (n), (t), (ta), (u) and (v)) raise quite different considerations. In the performance of its research and testing functions the Commission must pursue a policy directed towards the maintenance of scientific objectivity: s. 8(6). If the Commission's research shows that conditions in the workplace may impact differently upon men and women in ways that are relevant to occupational health and safety the Commission would obviously report upon that matter in accordance with proper standards of scientific objectivity. But the functions of research and report are quite distinct from the function of preparing standards for practical implementation in workplaces to which laws prohibiting discrimination apply. 18. In taking into account the SDA when preparing national standards and codes the Commission would of course be obliged to take into account the whole legislative scheme of the SDA including, most importantly in a case such as the present, the provisions of the SDA with respect to exemptions. Section 44 of the SDA provides that HREOC may grant exemptions from the operation of a provision of Division 1 (Discrimination in Work) or Division 2 (Discrimination in Other Areas). Exemptions or further exemptions under s. 44 may be granted

5 subject to terms and conditions and they must be granted for a specified period not exceeding 5 years. There is a right of review by the Administrative Appeals Tribunal of decisions made by HREOC under s Section 44 is a very important provision and it was submitted by senior counsel for HREOC that in determining whether to grant an exemption under s. 44, HREOC could take into account conflicts between the objects of the SDA and economic factors affecting the applicant for an exemption. Choices of that nature obviously involve difficult questions, and decisions about them are committed by the SDA to HREOC and to the Administrative Appeals Tribunal by way of a review. 20. The Commission, in formulating a standard or a code in circumstances in which the SDA may be relevant, should recognise that the power to grant exemptions rests with HREOC and that a workplace standard that might involve unlawful discrimination on the ground of sex in the general case might, by reason of the grant of an exemption under s. 44, not be unlawful at all under Commonwealth law in the specific case and for the period of time to which the exemption applied. 21. It cannot have been intended that in cases where conditions in the workplace impact upon men and women differently the Commission should ignore the SDA, or on the other hand, out of concern for the policy of the SDA, fail to set standards. Nor can it have been intended that the Commission should leave it to HREOC to set occupational health and safety standards. 22. In my view the interaction between the SDA and the NOHSC Act is such that Commission may declare standards and codes that fully recognise the impact of the SDA both insofar as it prohibits discrimination in employment and insofar as the SDA provides for the grant of exemptions by HREOC and, on review, by the Administrative Appeals Tribunal. The Commission may thus declare standards and codes of practice that are applicable where no exemption has been granted and which are set in such a way as not to involve any discrimination. At the same time the Commission may also declare other standards and codes as being applicable if, but only if, by reason of an exemption from the SDA or equivalent legislation, differences in the application of the standards or codes that turn on a person's sex do not involve unlawful discrimination. 23. In this way the Commission's standards and codes will be capable of lawful implementation in the workplace under all circumstances so that if, in the exercise of its powers, the HREOC considers it appropriate to grant an exemption there may be an applicable standard and code appropriate to those circumstances. If no exemption is granted, there will still be an appropriate standard and code, formulated by reference to relevant occupational health and safety considerations but on the footing that there is no exemption from operation of the SDA. Each such standard and code would reflect the proper concerns of the Commission with occupational health and safety matters and its recognition of the application, to the workplaces to which its standards and codes are intended to apply, of laws prohibiting discrimination in the area of work on grounds that include the ground of sex. 24. In my view, the Commission did err in law in proposing paragraph 14(1)(d) of the proposed standard. Its function was, relevantly, to declare national standards relating to occupational health and safety matters. By taking the approach revealed by paragraph 14(1)(d) the Commission, on a mistaken view

6 about the interaction between the NOHSC Act and the SDA, in effect transferred to another body, HREOC, the performance of part of its functions. The SDA does not require this and the NOHSC Act does not authorise it. 25. Paragraph 12.1(d) of the proposed code may seem at first sight to be free from the problem revealed by paragraph 14(1)(d) of the proposed standard. However, on closer examination, what it reveals is that the Commission, again on a mistaken view about the interaction between the two Acts, has not dealt with the position of women who are neither pregnant nor breast-feeding. In taking this approach the Commission made an error of law concerning the scope of its functions. 26. There was no challenge to paragraphs 14(1)(b) (pregnancy) or 14(1)(c) (breast feeding) of the proposed standard so I express no opinion about whether conduct is in accordance with them might, in some circumstances, involve a contravention of the SDA. I would merely observe that what is reasonable (see for example s. 7(1)(b), as to pregnancy) will obviously vary according to time and circumstance. 27. I should mention some other questions that were raised in argument. I agree with Lockhart J for the reasons he gives that the presence of intention, motive or purpose relating to health does not detract from the conclusion that there is discrimination on the ground of sex where a women is excluded from work in the lead industry in the circumstances to which his Honour refers. 28. I also agree with Lockhart J in his rejection of the view that the matters the SDA specifies as constituting unacceptable bases for differential treatment (relevantly s. 5 (1)(a), (b) and (c)) can be relied upon to support the conclusion that the circumstances are not "the same" or are "materially different" for the purposes of s. 5(1). 29. The primary judge did not find it necessary to deal with the question whether there was any inconsistency between the provisions of the NOHSC Act and the SDA although the question was raised in argument before us on the appeal. It follows from what I have said about the interaction of the two Acts that in my view there is no inconsistency between them. 30. For the reasons I have given, I would dismiss the appeal. I agree with the orders for costs proposed by Lockhart J. JUDGE2 LOCKHART J This appeal from the judgment of a Judge of the Court (Davies J) raises interesting and important questions under the Sex Discrimination Act 1984 (Cth) ("the SD Act") and concerns its relationship with the National Occupational Health and Safety Commission Act 1985 (Cth) ("the NOHSC Act"). Mt <<Isa Mines Limited ("Mt Isa>>") (the applicant at first instance and the first respondent to this appeal) sought orders of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s. 39B of the Judiciary Act 1903 (Cth) in respect of an alleged decision made or conduct leading to a decision to be made by the National Occupational Health and Safety Commission ("the Commission") concerning the adoption of a standard and code for the lead industry in Australia. The other parties to the application at first instance were the eighteen members of the Commission, the Commission itself and the Human Rights and Equal Opportunity Commission ("the HREOC"). 2. The Commission had been considering for some time the publication under s. 38 of the NOHSC Act of a standard and code of practice for persons and

7 companies engaged in the lead industry in which the presence of lead poses a risk to health. Mt <<Isa>>, a producer of lead, is one such company. The learned primary Judge declared that paragraph 14(1)(d) of the proposed National Inorganic Lead Control Standard ("the proposed standard") and paragraph 12.1(d) of the proposed National Code of Practice for the control and safe use of inorganic lead at work ("the proposed code"), each dated 4 December 1991, would be invalid if they were adopted, essentially on two grounds: (a) that the Commission appeared to have abrogated part of its function to the HREOC by accepting that the HREOC should, through its exemption process, establish proper safety precautions for the lead industry and (b) the Commission appeared to have been overborne by consideration of matters with which the SD Act is concerned, and thereby failed to develop a proper and adequate standard and code. His Honour ordered that the Commission and its members, before adopting a standard and code for the lead industry, consider further whether there are any appropriate provisions which in their opinion should from the point of view of occupational health and safety be included therein. His Honour ordered the Commission to pay the costs of Mt <<Isa>> of the proceeding. 3. The HREOC appealed to this Full Court from Davies J's judgment. The Commission and its members submitted to such order as the Court may see fit to make on the appeal and did not take part in argument. The active parties to the appeal were the HREOC and Mt <<Isa>>. The Court granted leave to the Public Interest Advocacy Centre ("the PIAC") to assist the Court as amicus curiae on a limited basis and had the benefit of the submissions of its counsel. 4. The Commission is a body corporate established under the NOHSC Act (s. 6). Section 7 of that Act defines the objects of the establishment of the Commission in these terms: "(a) the development among the members of the community of an awareness of issues relevant to occupational health and safety matters and the facilitation of public debate and discussion on such issues; (b) the provision, in the public interest, of a forum by which representatives of the Government of the Commonwealth, the Governments of the States and of employers and employees may consult together in, and participate in the development and formulation of policies and strategies relating to, occupational health and safety matters; and (c) the provision of a national focus for activities relating to occupational health and safety matters." 5. The functions of the Commission are specified in s. 8 and are numerous; but so far as presently relevant they include the following: "(a) to formulate policies and strategies relating to occupational health and safety matters; (b) to consider, and to make recommendations in relation to, the action that should be taken by, and to facilitate co-operation between, the Government of the Commonwealth, the Governments of the

8 States, employers, persons engaged in occupational activities and organizations of employers or of persons engaged in occupations on occupational health and safety matters;... (d) to review laws and awards relating to occupational health and safety matters;... (f) to declare national standards and codes of practice;... (r) to consult and co-operate with other persons, organizations and governments on occupational health and safety matters;..." 6. The expression "occupational health and safety matters" is defined in the interpretation section (s. 3) in the following terms: "'occupational health and safety matters' means matters relating to occupational health or occupational safety and, without limiting the generality of the foregoing, includes matters relating to one or more of the following: (a) the physiological and psychological needs and well-being of persons engaged in occupations; (b) work-related death; (c) work-related trauma; (d) the prevention of work-related death or work-related trauma; (e) the protection of persons from, or from risk of, work-related death or work- related trauma; (f) the rehabilitation and re-training of persons who have suffered work-related trauma;..." 7. The expressions "occupation", "work-related death" and "work-related trauma" are also defined in s. 3, but I need not recite the definitions. 8. Part VI of the NOHSC Act is concerned with "National Standards and Codes of Practice". Section 38, which is included in Part VI, provides as follows: "(1) The Commission may, by writing, declare national standards and codes of practice relating to occupational health and safety matters. (2) Except as otherwise provided by a law other than this Act or by an award or instrument made under such a law, a national standard or code of practice is an instrument of an advisory character. (3) A national standard or code of practice shall be published in the prescribed manner. (4) Before declaring a national standard or code of practice, the Commission shall, by notice published in accordance with the

9 regulations - (a) set out the standard or code of practice the Commission proposes to declare; (b) invite interested persons to make representations in connection with the proposed standard or code of practice by such date as is specified in the notice; and (c) specify an address or addresses to which representations in connection with the proposed standard or code of practice may be forwarded. (5) A person may, not later than the date specified in the notice, make representations to the Commission in connection with the proposed standard or code of practice, and the Commission shall give due consideration to any representations so made and, if the Commission thinks fit, alter the proposed standard or code of practice. (6) The Commission shall, as soon as practicable after declaring a national standard or code of practice, give a copy of the national standard or code of practice to the Minister." 9. The Commission is empowered to direct that inquiries be conducted in respect of occupational health and safety matters (s. 39); and the procedures for the conduct of those inquiries are specified in Part VII: "Public Inquiries". 10. In the course of considering the publication under s. 38 of an appropriate standard and code of practice for persons and companies engaged in the lead industry, the Commission conducted extensive inquiries and consulted people and government agencies. The Sex Discrimination Commissioner (appointed pursuant to s. 96 and subsequent sections of the SD Act) addressed a National Occupational Health and Safety Lead Forum on 9 August 1990 and he criticised an early draft of the proposed standard in these terms: "The Proposed Standard is discriminatory. It discriminates against women. The discriminatory aspects of the Proposed Standard are contained in the requirements for medical certification. These passages are: 19.3 Medical certification for suitability to commence work should take into account age, potential for foetal exposure, general health and target organ susceptibility Criteria for exclusion from medical certification include: a. Age less than 16 years. An employer shall not permit a person below the age of 16 years to be present in a lead process area; b. Potential for a foetus to be exposed

10 to an elevated maternal blood level of greater than 30 g/100 ml at conception or at any stage of development (overtly discriminatory and offensive to women) c. Target organ susceptibility, including: i. impaired renal function, ii. anaemia, haemoglobinopathies, iii. neuropathies, and iv. reproductive problems. (NOSHC 1990, p emphasis added) The proposed standard calls for the identification of 'non lead risk' jobs, and for non-discriminatory employment practices in relation to these. This is welcome as far as it goes. But for jobs identified as 'lead risk' the draft Code takes an approach which is completely unacceptable. It fails to protect the rights of all workers to the safest working conditions feasible. It fails to respect the right of women to work without discrimination." 11. At the same forum an address was given by an officer of the Affirmative Action Agency who referred to a 1978 standard of the USA Occupational Safety and Health Administration which stated: "Exposures to lead can have serious effects on the reproductive function in males and females... because of the demonstrated adverse effects of lead on reproductive function in male and female, as well as the risk of genetic damage of lead on both ovum and sperm, it recommends a g/ml maximum permissible blood lead level in both males and females who wish to bear children." 12. On 11 October 1990 Mt <<Isa>>, being concerned with the constitution of an Expert Review Group or Lead Expert Working Group, wrote a letter to the Commission stating that the Commission "seriously misunderstood and exceeded its statutory purpose and powers" and requested the Commission to seek advice from the Department of the Attorney-General. The Commission took advice from the Attorney-General's Department which was to the effect that occupational health and safety matters did not encompass the health of the unborn foetus. The advice from the Department also said: "35. Accordingly, in exercising your powers under the NOHSC Act you are obliged to avoid treating women less favourably then, in circumstances that are the same or not materially different you would treat men by reason of a characteristic that appertains generally to women (eg the capacity to become pregnant)." 13. The advice referred also to s. 26 of the SD Act, a section which renders it unlawful for any person who performs any function or exercises any power under a Commonwealth law to discriminate against any other person on the ground of the other person's sex, marital status or pregnancy in the performance of that function.

11 14. Meetings of the NOHSC Standards Development Standing Committee Expert Working Group on Lead were held from time to time including a meeting on 24 April 1991 when its members discussed "whether to exclude certain women on the grounds of pregnancy and breast-feeding". A Ms P Hall, who represented the Department of Industrial Relations, Employment, Training and Further Education, NSW, advised members that the issue would not conflict with the SD Act. 15. On 13 June 1991 there was a meeting of the Lead Expert Working Group, the minutes of which record: "Ms P Hall presented a summary paper of issues involved, including legal opinion on the proposed removal levels for employees planning to have a family. Ms P Hall's paper is attached to these minutes. Members AGREED that the proposed standard should be modified so that it will not be in conflict with the Sex Discrimination Act 1984." 16. On 25 June 1991 there was a further meeting of the NOHSC Standards Development Standing Committee Expert Working Group on Lead. 17. On 3 July 1991 Dr Cathy Mead, the chairperson of the Lead Expert Working Group, wrote a lengthy report to the Commission which included the following: "Anti-discrimination law prohibits treating men and women differently. Discriminating against women on the basis of 'child-bearing capacity' would amount to sex discrimination, and it would not be open to Worksafe to promulgate a standard which was discriminatory in that way. This is irrespective of whether there is a toxicological or health-based reason for such action. Obviously, it would have been simpler if the reproductive effects on men and women occurred at the same blood lead level. The LEWG doesn't believe this has been demonstrated to be the case." 18. On 17 September 1991 the Commission met and the minutes of its meeting record, inter alia, the following: "19. The National Commission CONSIDERED the issues of the accommodation of equal opportunity and employers' and employees' duties in the lead standard; the implications of the potential to compromise the employer's duty of care by imposition of a duty on the employee to inform the employer of risk; and the legal liability of all involved parties. Copies of preliminary legal advice from a Queen's Counsel briefed at the request of the National Commission were made available to members." 19. On 17 October 1991 Mt <<Isa>> wrote a letter to the Commission referring to its establishment of a "task force" to develop a plan to accommodate equal opportunities and health and safety in the lead industry. The letter said, inter alia:

12 "We do not believe that Worksafe Australia (a reference to the Commission) is legally obliged to give sex discrimination issues the same consideration as occupational health and safety issues and in doing so is in breach of its statutory responsibilities. In our submissions to Worksafe Australia opposing a gender-neutral code and standard, we have stressed our social and legal obligations to employees and their children. Ms Beazley Q.C.'s advices affirm that a duty of care can be owed by an employer to a foetus carried by a female employee and notes that by imposing a gender-neutral standard Worksafe may thereby be causing employers to breach a duty of care owed to unborn children." 20. On 25 October 1991 an officer of the Attorney-General's Department advised the Commission that it was bound to comply with the provisions of the SD Act and that the health of an unborn foetus was not the concern of the Commission for an unborn foetus was not a person and had no rights. This view was not adopted by officers of the Commission. It also attracted the following observations of Davies J: "I merely wish to make it clear that, in my view, the Commission's task is to concern itself not merely with 'persons engaged in occupations' but also with the impact which their occupations may have upon the health of members of their families, the effect of lead upon reproduction, the effect of lead upon an unborn foetus, the effect of lead upon a child who breastfeeds and like matters. These are all matters which are very much the concern of the Commission. The definition of 'occupational health and safety matters' is not to be read in any technical or limited way... The effect which a worker's employment may have upon the health of his or her children is within that concept." I agree with those observations of his Honour. 21. The HREOC played an active role in discussions with officers of the Commission; this appears from the affidavit by the secretary of HREOC, Mr Sidoti, who stated, inter alia: "10. In relation to the preparation of the lead standard the Commission (HREOC) has been involved as follows:... iii) In November 1988 Worksafe (the National Occupational Health and Safety Commission) held a national workshop on the safe use of lead which was attended by the Sex Discrimination Commissioner. At the conclusion of the Workshop it was agreed that a draft discussion paper and a Proposed National Standard and

13 Code of Practice would be further developed taking into account the views expressed at the workshop and that a tripartite study group, which would include a representative of the Commission, would visit workplaces employing lead processes. iv) On 16 and 17 March 1989 the Sex Discrimination Commissioner visited the <<Mount Isa>> mines of the applicant together with representatives from the ACTU, CAI, State Occupational Health Commissions, the Australian College of Occupational Medicine, State Equal Opportunity bodies and Worksafe. v) In March 1990 the South Australian Equal Opportunity Commission convened a National Workshop on Women and Lead. The Sex Discrimination Commissioner presented a paper to that Workshop. vi) In March 1990 Worksafe released 'Lead - A Public Discussion Paper' and called for public submissions in response to the document. The Sex Discrimination Commissioner prepared and forwarded a detailed submission in response. vii) On 9 August 1990 Worksafe held a 'Lead Forum' where discussion of the Worksafe document took place. The Sex Discrimination Commissioner addressed that forum. viii) In July 1991 the Sex Discrimination Commissioner delivered a paper on the lead industry and foetal protection policies in the United States and Australia to the Women, Management and Industrial Relations Conference held at Macquarie University. ix) On 14 November 1991 the Sex Discrimination Commissioner and I attended a meeting of the Worksafe Lead Task Force to discuss further the provisions in the proposed National Standard and Code dealing with the employment of women in the lead industry. At that meeting the Task Force reached substantial agreement on the provisions." 22. Following these discussions the proposed standard and code were prepared for the purpose of being considered by the Commission at its meeting on 4 December The adoption of the proposed standard and code has been deferred pending the conclusion of this proceeding.

14 23. The proposed standard includes the following paragraphs which are of particular relevance in this case: "14(1) Criteria for exclusion from working in a lead-risk job are: (a) personal medical condition; (b) pregnancy; (c) breast feeding; and (d) such other basis as may be permitted under relevant anti-discrimination legislation. (2) These exclusions do not apply to non lead-risk jobs (24) If the results of biological monitoring reveal that the confirmed blood lead level is at or above 2.9 mol/l (60 g/100 ml); or the employer or employee considers that an excessive exposure to lead has occurred, the employer shall: (a) immediately remove the employee from the lead-risk job to a job that is not a lead-risk job; (b) arrange for the employee to have a medical examination by an authorised medical practitioner within seven days; and (c) provide the authorised medical practitioner with a copy of the form in Schedule 4 with Part A filled in, signed and dated by the employer. (25) If an employee advises the employer that she is pregnant or is breast feeding, the employer shall immediately remove the employee from the lead-risk job to a job that is not a lead-risk job."... 17(6) An employee knowingly pregnant or breast feeding shall advise the employer as soon as practicable." 24. It is paragraph 14(1)(d) that is the principal subject of Mt <<Isa>>'s attack on the proposed standard. 25. The proposed code includes the following paragraphs: "7.1 Employers shall ensure that the information supplied to job applicants includes as a minimum the following: (a) lead is a toxic substance which is retained within the body long-term; (b) lead can affect the nervous and reproductive systems, reproductive system, kidneys and interfere with the ability of the body to make haemoglobin; (c) the unborn child is particularly susceptible to the effects of lead and on this basis employees who are pregnant or breastfeeding are excluded from working in

15 lead-risk jobs; Regarding exclusion from working in a lead-risk job: (a) Individuals with certain medical conditions (such as impaired renal function, anaemia, haemoglobinopathies, neuropathies and reproductive problems) may be more susceptible to the adverse effects of lead on health. Exclusion from working in a lead-risk job on such grounds should be in accordance with section 15 of the standard, Health Surveillance. (b) Lead is a particular health risk to the fetus (sic). A pregnant employee should keep her blood lead level below 30 g/100 ml and as low as possible. (c) Infants are more susceptible to the health effects of lead than adults. A breastfeeding employee should keep her blood lead level below 30 g/100 ml and as low as possible. (d) We are advised by HREOC that employers wishing to exclude women, other than those pregnant or breastfeeding, from lead-risk jobs will need to seek an exemption from the relevant Sex Discrimination legislation." 26. It is paragraph 12.1(d) that is the principal target of attack by Mt <<Isa>> on the proposed code. 27. Davies J observed that the proposed standard and code did not distinguish between male and female employees otherwise than as set out above notwithstanding the view expressed by Dr Mead that the Expert Working Group considered that the effects on reproduction did not occur at the same blood levels for both males and females or at least that it had not been demonstrated that that was so. 28. There appears to be some controversy as to the relative degree of risk created by industrial exposure to lead of fertile men on the one hand and fertile or breast-feeding women on the other. Mt <<Isa>> expresses concern that women working in the lead industry may become pregnant or be pregnant at a time when their lead levels are unduly high. It appears to be accepted by the parties, at least for the purposes of this case, that the reproductive capacity of women may be damaged by a lower lead level than is the case with males. HREOC took an active interest in the problems in the lead industry with a view to persuading employers to introduce protective measures applicable to all employees which would reduce the level of exposure to such an extent that neither male nor female employees nor members of their families would be at risk. HREOC therefore introduced a practice of receiving applications under s. 44 of the SD Act from employers in the lead industry for exemption from the operation of that Act. Section 44 is an important section; it empowers the Commission by instrument in writing to grant to persons or classes of persons exemption from the operation of provisions of Division 1 or 2 specified in the instrument. Division 1 (of Part II) relates to discrimination in work and Division 2 to discrimination in other areas.

16 29. HREOC appears to have granted such exemptions to various employers; but seeks to persuade employers to introduce protective measures suitable to cover the whole of the workforce in an equal manner. Thus HREOC took an active interest in the alleged discriminatory effect of practices adopted in the lead industry. 30. Davies J said in his reasons for judgment: "The task of the Commission is a controversial one for exposure to lead may affect reproductive capacity and women may be more at risk than men. Lead may be harmful to the unborn foetus and undue lead levels in a mother who breastfeeds a child may affect the health and welfare of the child. Thus, exposure to lead has a tendency to affect women more than men. In the result, a view has developed that the imposition of too strict health precautions can lead to discrimination against women in employment in lead risk industries." 31. The correctness of this passage from his Honour's judgment was not disputed in argument before us. 32. The case of Mt <<Isa>> was essentially that in the preparation of the draft standard and code intended to be adopted by the Commission and published pursuant to s. 38(3) of the NOHSC Act, officers of the Commission were overborne by sex discrimination considerations and failed to give proper attention to what shall be the concern of the Commission, namely, the adoption of proper standards and codes to guide persons in lead risk industries in the protection of health and safety. 33. Davies J rejected the submission of counsel for Mt <<Isa>> that occupational health and safety was the sole consideration of the Commission and that the Commission ought to put concepts of sex discrimination totally from its mind. His Honour said: "However, the Commission cannot look at matters of health and safety in the abstract. Its task is to prepare standards which will be a guide to the industry. Therefore the Commission's task is to prepare standards and codes which are practical and acceptable. The Commission is entitled, when preparing a standard or code for the lead industry, to take into account the part which women do and can play in that industry and therefore to propose and adopt a standard and code which, in the view of the Commission, is fair to women, whilst setting proper and adequate standards and practices for adoption throughout the lead industry." This passage was not challenged on appeal and I agree with it. 34. His Honour accepted, however, the submission of counsel for Mt <<Isa>> that it is not the task of the Commission to concern itself with the implementation of the SD Act; that is the task of the Sex Discrimination Commissioner, HREOC and the Federal Court. That finding was challenged on appeal.

17 35. Counsel for HREOC argued before the primary Judge that for the purposes of s. 5 of the SD Act it is a characteristic of women that they may become pregnant and bear children (paragraphs (b) and (c) of sub-s. (1) of s. 5) and that, if it is a characteristic of women that their reproductive capacity may be damaged by a lower lead level than is the case with males (a view which officers of the Commission appear to accept), then that also is a characteristic of women within the meaning of those same paragraphs. HREOC argued before his Honour that, subject to the exceptions for which s. 44 of the SD Act provides, it is unlawful to discriminate by reason of such characteristics. 36. His Honour made the following findings which were strongly challenged in argument before us: "I would not myself read s.5 in such absolute terms. If discrimination is on the basis of danger either to the health of a woman employee, by reference to the level of lead which may affect reproductive capacity, by reason of the danger of lead to an unborn foetus or by reference to the danger of lead to a child who breastfeeds, I doubt that such discrimination is discrimination on the basis of sex as defined in s.5 of the Sex Discrimination Act. Rather it would be discrimination on the basis of health. Nor would I describe the position of a woman who was seeking to become pregnant or a woman who was pregnant or a woman who was breastfeeding a child as a circumstance that was the same or not materially different from that of a male employee in the lead industry. Nor on a prima facie basis, would I regard any proper practice recommended by the Commission in a standard or code for the lead industry as being one which was "not reasonable" having regard to the circumstances of the case, for the purposes of ss.5 and 7 of the Sex Discrimination Act. It seems to me that compliance by employers in the lead industry with any reasonable and appropriate standard and code which the Commission thought it proper to publish would not be likely to infringe any provision of the Sex Discrimination Act. Thus, I do not accept that exemption from the Sex Discrimination Act is required by an employer who desires to lay it down as a rule of practice that a woman who is breastfeeding a child should not work in a lead risk environment." 37. Later in his reasons for judgment his Honour referred to the submission of counsel for Mt <<Isa>> in these terms: "Sir Maurice Byers submitted that, if it limited its consideration in this way, the Commission would fail to deal with matters that were clearly before it and which were its function to consider. Sir Maurice submitted that officers

18 of the Commission had, by deferring to HREOC, abrogated the Commission's function or a part of its function to deal with the health and safety aspects of employment in lead risk industries and to lay down, in the form of a recommendatory standard and code, what it considered to be proper and appropriate safeguards for employees in the workplace." 38. His Honour then said this with respect to the submission of counsel for Mt <<Isa>>: "I agree with Sir Maurice's submission in this respect. It seems to me that those who drafted the proposed standard and code did so under a mistaken view that they were precluded from going further by the Sex Discrimination Act. In my opinion, the Commission has a duty to perform and, if it is of the view that certain practices are desirable in the interests of health and safety, then its function is to recommend what those practices should be. For the reasons I have already given, it is doubtful that discrimination on health grounds would infringe the Sex Discrimination Act. But even if it would, a statement by the Commission of appropriate safety precautions cannot infringe the Sex Discrimination Act. If an employer is of the view that exemption from the Sex Discrimination Act must be obtained under s.44 of the Sex Discrimination Act from HREOC before compliance with the standard and code, then the employer would be able to seek exemption from HREOC on the ground that it wished to comply with the safeguards which the Commission had recommended as desirable. HREOC would then consider whether to grant such an exemption. But it would have before it the standard and code of practice issued by the Commission and would no doubt take that into account. In brief, the Commission is entitled to take account of the object which the Sex Discrimination Act is designed to achieve, namely lack of discrimination on grounds of sex and it should, in any event, attempt to formulate a standard that is fair to employees whether male or female. But the Commission is not limited in its consideration by anything set down in the Sex Discrimination Act. Sex discrimination is a matter for the Sex Discrimination Commissioner, for HREOC and for the Federal Court. Occupational health and safety is a matter for the Commission. Those who drafted the proposed code and standard appear to have abrogated a part of the function of the Commission by accepting that HREOC should through its exemption process establish proper

19 safety precautions for the lead industry. Yet the task of establishing occupational health and safety standards is specifically conferred upon the Commission. Its function is to form its view about those matters and to state its views in the standards and codes which it publishes under s.38 of the Act. Thus, the officers of the Commission who have drafted the proposed standard and code have done so under a misapprehension of law as to the effect and ambit of the Sex Discrimination Act." 39. Counsel for the HREOC submitted on this appeal that the primary Judge erred in three major respects in his reasons for judgment, namely: (1) in expressing the view that discrimination on the ground of health would not constitute an infringement of s. 14 of the SD Act; (2) in holding that the fact that a pregnant woman or breast-feeding mother might be at greater risk from lead exposure meant that "the circumstances" were "materially different" within the meaning of s. 5(1) of the SD Act; (3) in finding that it is not the task of the Commission to concern itself with the SD Act. 40. Counsel for the HREOC also argued that, if it is necessary for the Court to consider any question of inconsistency between the SD Act and the NOHSC Act (his Honour did not find it necessary to resolve this question), the preferred view is that there is no such inconsistency. 41. Counsel for Mt <<Isa>> supported his Honour's primary findings and in particular contended as follows:-. the Commission's functions are directed solely to health and safety issues;. in preparing and publishing the proposed standard and code, the Commission's approach was determined by the provisions of the SD Act rather than by its own statutory functions under the NOHSC Act;. the Commission, in deferring to the HREOC:- (a) abrogated the Commission's function, or a part of its function, to deal with the health and safety aspects of employment in lead risk industries; (b) failed to lay down in the form of a recommendatory standard and code what it considered to be proper and appropriate safeguards for employees in the workplace; (c) transfered the Commission's functions at least in part to the HREOC, a body which is established for different purposes which do not include the promulgation of occupational health and safety standards; (d) acted on a mistaken view of the law that the Commission was precluded from performing part of its function by the SD Act; (e) failed to consider whether certain practices are desirable in the interests of health and safety and, if so, what those practices should be; and (f) acted on the mistaken view of the law that the Commission was obliged in the performance of its functions to implement the SD Act;. the provisions of the NOHSC Act are not inconsistent with the provisions of the SD Act; but if they are thought to be

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